in the Matter of the Guardianship of Warren Dowling Whitcomb, a Non Compos Mentis

• Court: Court of Appeals of Texas
• Decided: May 5, 2005
• Docket: 13-04-00022-CV
• Status: Published

Opinion

NUMBER 13-04-022-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF THE GUARDIANSHIP OF

WARREN DOWLING WHITCOMB, A NON COMPOS MENTIS

On appeal from the County Court at Law No. 2

of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Castillo and Garza

Memorandum Opinion by Justice Garza

          Appellee, Kathryn E. Fojt, filed a suit to have a guardianship ordered for her father, appellant, Warren Dowling Whitcomb. After a jury trial, an order was entered granting the guardianship and appointing appellee as guardian of appellant’s person and estate. By one issue, appellant complains that the evidence at trial was legally and factually insufficient to rise to the level of clear and convincing evidence necessary to create a guardianship over appellant.

Legal and Factual Sufficiency

1.       Preservation of Error

          As a preliminary matter, appellee claims that appellant has not preserved his legal and factual sufficiency issues for appeal. We agree. To preserve a legal sufficiency or no evidence issue for appeal a party must use one of the following methods: (1) a motion for instructed verdict, (2) an objection to the submission of the issue to the jury, (3) a motion to disregard jury’s answer, (4) a motion for judgment notwithstanding the verdict, or (5) a motion for new trial specifically raising the complaint. T.O. Stanley Boot Co. v. Bank El Paso, 847 S.W.2d 218, 220 (Tex. 1992); Arroyo Shrimp Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 148-49 (Tex. App.–Corpus Christi 1996, no writ). A complaint challenging the factual sufficiency of the evidence to support a jury finding must be urged in a motion for new trial in order to preserve the issue for appeal. Tex. R. Civ. P. 324(b); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991); Arroyo Shrimp Farm, 927 S.W.2d at 149. We have reviewed the record and find that appellant did not challenge the legal or factual sufficiency of the evidence in the trial court at any juncture. Accordingly, we hold that appellant has waived his sole issue on appeal and therefore dismiss this appeal. See Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 324(b)(2).  

                                                                               _______________________

                                                                               DORI CONTRERAS GARZA,

                                                                               Justice

Memorandum Opinion delivered and

filed this the 5th day of May, 2005.